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HomeMy WebLinkAboutResolution - 2007-R0217 - Compromise Settlement Agreement - Mart Mariam Family Limited Partnership - 05/24/2007Resolution No. 2007-80217 May 24, 2007 Item No. 5.31 RESOLUTION T RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Compromise Settlement Agreement and Release of All Claims by leen the City of Lubbock and Mart Mariam Family Limited Partnership the owners of cc property located at the intersection of Frankford Avenue and Spur 327, settling all cl disputes related to eminent domain action Cause No. 2006-822,389, City of Lubbock v. -iam Family Limited Partnership, et, al., relating to developing a northbound Fran] nue and Spur 327 right hand turn lane, which is attached hereto and which shall be sl n the minutes of the Council and as spread upon the minutes of this Council shall cons be a part of this Resolution as if fully copied herein in detail, be ratified. sed by the City Council this 24th day of May , 2007• David A. Miller, Mayor ATTEST: Re �Garza,ty Secretary APPROVED AS TO CONTENT: -Z),: � , , zy '/' Dave Booher Right of Way Agent APPROVED AS TO FORM: Matthew L. Wade Natural Resources Attorney ml/ccdocs/settlement agreement- mart mariam May 17, 2007 Resolution No. 2007-80217 COMPROMISE SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS This Compromise Settlement Agreement and Release of All Claims ("Settlement Agreement") is entered into by, between, and among the City of Lubbock (the "City"), and the Mart Mariam Family Limited Partnership (the "Property Owner"). RECITALS WHEREAS, the City instituted a condemnation action (Cause No. 2006-822,389 — City of Lubbock v. Mart Mariam Family Limited Partnership, et al. in the County Court of Law No. 3 of Lubbock County, Texas) for a portion of certain real property, surface interest only, owned by the Mart Mariam Family Limited Partnership located at the southeast corner of the intersection of Frankford Avenue and Spur 327, Lubbock, Lubbock County, Texas, and more particularly described by metes and bounds as follows: A portion of Lot 3 and 4 Farrar Del Norte, an Addition to the City of Lubbock, Lubbock County, Texas, according to the map, plat and/or dedication deed thereof recorded in Volume 1587, Page 636, Deed Records of Lubbock County, Texas, being further described as follows: BEGINNING at a '/z" iron rod with cap set in the East right -of --way line Frankford Avenue for the Southwest corner of Lot 4 Farrar Del Norte, which bears N. 00°00'30" E. a distance of 1247.52 feet and S. 89158'45" E. a distance of 55.00 feet from the Southwest corner of Section 28, Block E-2, Lubbock County, Texas; THENCE N. 00000030' E., along the East rigbt-of-way line of said Frankford Avenue and the West line of Lots 3 and 4, a distance of 27998 feet to a Ya" iron rod with cap set for a point of curvature; THENCE Northeasterly, around a curve to the right, said curve having a radius of 15.00 feet, a central angle of 90°00'45" tangent lengths of 15.00 feet and a chord distance of 21.21 feet to a Y2" iron rod with cap set in the South right-of-way line of Spur 327 in the North line of Lot 3, for a point of tangency; THENCE S. 89°58'45" E., along the South right-of-way line of said Spur 327 and the North line of said Lot 3, a distance of 15.00 feet to a '/z" iron rod with cap set for the Northeast corner of this tract; THENCE Southwesterly, around a curve to the left, said curve having a radius of 15.00 feet, a central angle of 90100'45", tangent lengths of 15.00 feet and a chord distance of 21.21 feet to a Y2" iron rod with cap set for a point of tangency; THENCE S. 00000'30" W., at 141.98 feet pass a "X" on concrete cut in the South line of said Lot 3 and the North line of Lot 4, continuing for a total distance of 279.98 feet to a /z" iron rod with cap set in the South line of said Lot 4 for the Southeast corner of this tract; THENCE West, along the South line of said Lot 4, a distance of 15.00 feet to the Point of Beginning (the "Property"). WHEREAS, all parties are willing to settle all claims, and resolve all matters between them in connection with the Property, including the conveyance of a portion thereof, to avoid the inconvenience, distractions, uncertainties, and expenses attendant to litigation and trial, in exchange for the consideration and releases set forth below. 1. IN CONSIDERATION of the payment by City to the Property Owner of the sum of FIFTEEN THOUSAND FIVE HUNDRED and NO/100 DOLLARS ($15,500.00), the Property Owner does enter into this Settlement Agreement and does hereby release, acquit, and forever discharge the City, its respective predecessors, successors, assigns, owners, City Council, partners, members, managers, employees, directors, legal representatives, insurers, independent contractors, agents, and attorneys (the "Releasees") of and from any and all liability, claims, demands, damages, attorney's fees, costs, liens, whether statutorily provided or otherwise, expenses, services, actions, causes of action, or suit in equity, of whatsoever kind or nature, whether heretofore or hereafter accruing, which the Property Owner now has or may hereafter have, whether known or unknown, arising out of the activities of City or otherwise arising in connection with the Property, suffered as of, or related to, or accruing prior to the execution of this Settlement Agreement, including any and all associated activities related thereto. This Settlement Agreement includes any diminution in value which occurs as a result of this taking save and except those damages incurred as a result of the negligent acts or omissions of the City, Property Owner or any third party. This Settlement Agreement shall not be held to include, nor does it contemplate, such damages. 2. Payment shall be made by check in the amount of FIFTEEN THOUSAND FIVE HUNDRED and NO/ 100 DOLLARS ($15,500.00), jointly payable to the Mart Mariam Family Limited Partnership and Ryan J. Bigbee. The check will be delivered after this Settlement Agreement is executed by all parties. It is agreed by the parties hereto that this amount does not represent the value of any remainder of Respondent's property and shall not be used to determine the price or value of the remainder of Respondent's property or any other property to which Respondent owns any right, title or interest. 3. The Property Owner agrees enter into and have executed simultaneous with this Settlement Agreement an Agreed Final Judgment in the form attached to this Settlement Agreement as Exhibit A the purpose of which is to convey, in fee simple, the Property as described above to the City. The Property Owner further agrees to secure and/or execute any additional instruments that may be required, in the sole discretion of the City, to effectuate the purposes of this Settlement Settlement Agreement, Mart Mariam Page 2 of 8 Agreement, as well as to convey to the City the unencumbered fee simple interest in and to the Property. 4. This Settlement Agreement includes any transaction, occurrence, matter or thing whatsoever, whether known or unknown, arising or occurring due to this incident referenced herein including, but not limited to, all claims, demands, causes of actions of any nature, whether in contract or in tort, or arising out of, under or by virtue of any statute or regulation, that are recognized by law or that may be created or recognized in the future by any manner, including, without limitation, by statute, regulation, or judicial decision, for past, present and future damage or loss, or remedies of any kind that are now recognized by law or that may be created or recognized in the future by any manner, and including but not limited to the following: all actual damages, all exemplary and punitive damages, all penalties of any kind, or statutory damages. The Property Owner hereby declares that they fully understand the terms of this Settlement Agreement, and voluntarily accepts the above stated sum for the purposes of making full and final settlement of any and all the injuries, damages, expenses, and inconvenience to them or the Property above mentioned, as well as fair compensation and consideration for the Property herein agreed to be conveyed. As stated above, this includes any diminution in value which occurs as a result of this taking. This Settlement Agreement includes any diminution in value which occurs as a result of this taking save and except those damages incurred as a result of the negligent acts or omissions of the City, Property Owner or any third party. This Settlement Agreement shall not be held to include, nor does it contemplate, such damages. 5. This Settlement Agreement may be pled as a full and complete defense to any action, suit, or other proceeding, which may be instituted, prosecuted, or attempted for, upon, or in respect of any of the claims released hereby. This Settlement Agreement includes any diminution in value which occurs as a result of this taking save and except those damages incurred as a result of the negligent acts or omissions of the City, Property Owner or any third party. This Settlement Agreement shall not be held to include, nor does it contemplate, such damages. The parties hereto agree that any such proceeding would cause irreparable injury to the party against whom it is brought, and that any court of competent jurisdiction may enter an injunction restraining prosecution thereof. 6. The parties agree that the damages suffered by the Releasees by reason of any breach of any provision of this Settlement Agreement shall include not only the amount of any judgment that may be rendered against said Releasees by reason of a breach of this Settlement Agreement, but shall also include all damages suffered by them, including the cost of attorney's fees and other costs and expenses of instituting, preparing, prosecuting, defending any action or suit resulting from a breach of this Settlement Agreement, whether taxable or otherwise, and costs to them of attorney's fees and all other costs and expenses of instituting, preparing, or prosecuting any counterclaim, suit, motion, or action to recover damages resulting from the breach of this Settlement Agreement, whether taxable or otherwise. Settlement Agreement, Mart Mariam Page 3 of 8 7. The Property Owner hereby represents and warrants that they and they alone, own the claimed rights, interests, demands, actions, or causes of action, obligations, or any other matter covered by this Settlement Agreement (the "Claimed Rights"), and that the Property Owner has not transferred, conveyed, pledged, assigned, or made any other disposition of the Claimed Rights. The Property Owner agrees to indemnify and hold harmless the Releasees from and against any and all claims, demands, or causes of action and the reasonable and necessary costs, including attorney's fees, incurred in the defense of any such claim that any person who claims an ownership, including any liens whether statutory or otherwise, in the Claimed Rights or any other matter covered by this Settlement Agreement. The Property Owner hereby represents and warrants that they and they alone, own the Property and all legal title and rights to the Property. The Property Owner agrees to indemnify and hold harmless the Releasees from and against any and all claims, demands, or causes of action and the reasonable and necessary costs, including attorney's fees, incurred in the defense of any such proceeding or claim that any person who claims an ownership, including any liens whether statutory or otherwise, in the Property. 9. The terms of this Settlement Agreement shall inure to the benefit of, and be binding upon, the Parties, their legal representatives, successors, or assigns. 10. All signatories to this Settlement Agreement hereby warrant that they have the authority to execute this Settlement Agreement and bind the respective parties. 11. This Settlement Agreement states the entire agreement of the parties with respect to the matters discussed herein, and supersedes all prior or contemporaneous oral or written understandings, agreements, statements, or promises. 12. This Settlement Agreement may not be amended or modified in any respect except by a written instrument duly executed by all of the parties to this Settlement Agreement. 13. If this Settlement Agreement does not become effective for any reason, it shall be deemed negotiations for settlement purposes only and will not be admissible in evidence or usable for any purposes whatsoever. 14. This Settlement Agreement has been and shall be construed to have been drafted by all parties to it so that the rule of construing ambiguities against the drafter shall have no force or effect unless such portion or term is one which is mutually dependent. 15. If any portion or term of this Settlement Agreement is held unenforceable by a court of competent jurisdiction, the remainder of this Settlement Agreement shall not be affected, and shall remain fully in force and enforceable. 16. Each party has consulted with whatever consultants, attorneys, or other advisors each deems appropriate concerning the effect of entering into this Settlement Settlement Agreement, Mart Mariam Page 4 of 9 Agreement, and the Property Owner assume the risk arising from not seeking further or additional consultation with such advisors. 17. Each party assumes the risk of any mistake of fact or law with regard to any aspect of this Settlement Agreement, the dispute described herein, or any asserted rights released by this Settlement Agreement. 18. The Property Owner shall be solely responsible for any and all federal, state or local income taxes, if any, associated with this Settlement Agreement save and except those taxes which may arise with respect to the Property which is taken as determined by the City of Lubbock. 19. Each party further state that this Settlement Agreement, including the foregoing release, has been carefully read and each party understands the contents thereof and has signed the same as their own respective free act, and has not been influenced in making this settlement by any representative of a party or parties released. 20. it is further understood that the provisions of this Settlement Agreement are contractual and not mere recitals, and that the laws of the State of Texas shall govern this Settlement Agreement and that venue for any action arising out of or related to this Settlement Agreement and the claims associated therewith shall lie in Lubbock County. Yy� EXECUTED this moi' day of f + , 2007. MART MARIAM FAMILY L.P. L � Printed Name: No b S X a ra le.anrSse t STATE OF T-EXAS § COUNTY OF SIC § Before me, the undersigned authority, on this day of 12 007, personally appeared &S A a t I , individually and by proper authority representing the Mart Mariam Family Limited Partnership, Settlement Agreement, Mart Mariam Page 5 of 8 known to me to be the person whose names are subscribed to the foregoing instrument and acknowledged to me that she executed the same for the purposes and consideration therein expressed. , ' Notary P is for t OFState of e � "cum i � PUKC r kv C "!!lrirt40,� Settlement Agreement, Mart Mariam Page 6 of 8 CITY OF LUBBOCK By: l/, -e- Z-,D'w.� Printed Name: Z--�a vea STATE OF TEXAS § COUNTY OF LUBBOCK § Before me, the undersigned authority, on this day of ///Li 2007, personally appeared _ _ �,G/cG/ , known to me to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that s/he executed the same for the purposes and consideration therein expressed. [SEAL] r VENITAWAa5WORTH MY COMMISSION EXPIRES }`= May 28, 2008 y Public for of Texas Settlement Agreement, Mart Mariam Page 7 of 8 APPROVED AS TO FORM ONLY: a for Property Owner M*H�E�W WADE Attorney for City of Lubbock Settlement Agreement, Mart Mariam Page 8 of 8